SC Year In Review: Sexual Harassment Ruling May Have Lasting Impact
This Connecticut Supreme Court term was again relatively quiet in the area of labor and employment, with only a few decisions that impact employers, and therefore should impact the advice attorneys give their clients.
Discharging Sexual Harasser
In State of Connecticut v. AFSCME, Council 4, Local 391, the employee, a correctional officer working for the state, was discharged for engaging in open sexual harassment over a period of time. The alleged conduct included verbal comments referencing oral sex and child molestation, graphic and sexually suggestive comments about the complainant's sexual activity, and physical touching including placing a banana near the complainant's crotch area in front of employees and inmates.
After a five-day hearing, an arbitrator issued an award that reduced the employee's dismissal to a one-year suspension without pay or benefits. The arbitrator concluded the dismissal was not "for just cause" as required under the collective bargaining agreement. The arbitrator's award was overturned by the trial court and made its way up to the Connecticut Supreme Court.
Although courts give great deference to arbitrator awards, there are several exceptions including where there is a clear and well-defined public policy. In other words, the courts will not endorse decisions made by arbitrators that contravene the law or public policy. The Court determined there is a clear and well-defined public policy against sexual harassment and the grievant's behavior was so "egregious and incorrigible" that it violated that policy. The Court held public policy required the employee's dismissal.
Despite its ruling, the Court recognized "the fact that there is a strong public policy against certain misconduct does not require an employer to terminate every employee who engages in that misconduct." However, the determination is whether the conduct is so egregious that it requires termination.
This case is important because all employers — public and private alike — who seek to remedy a situation involving sexual harassment may not have as much discretion in selecting an appropriate remedy as they think. In certain circumstances, employers have no choice but to terminate the employee. Employers and their attorneys should be aware that the language of this case is broad and will likely be used by employees claiming their employer did not effectively combat sexual harassment when the penalty for harassment is arguably too light.
Head Count Affects CTFMLA
In Velez v. Commissioner of Labor et al., the Court held that the Connecticut Family and Medical Leave Act (CTFMLA) applies to employers with 75 or more Connecticut employees. Under the CTFMLA, employees can take 16 weeks of unpaid leave in any 24-month period under certain circumstances. The federal Family and Medical Leave Act (FMLA) only provides 12 weeks of unpaid leave in a 12-month period under similar circumstances.
The defendant in this case employed over 1,000 workers nationwide, but less than 75 in Connecticut. Because of this, the CTFMLA did not apply. The Court affirmed the decision and practice of the Connecticut Department of Labor.